The State and Education Policy: The Academies Programme

Helen M. Gunter, Helen M. Gunter

• Publisher: Continuum
• Year: 2010
• ISBN:
  9781441150172
• Edition: 1
• Topic: Education
• Subtopic: Physical Education

This collection draws together contributions from leading researchers and participants to explore a major reform process of the state and education system in particular. The shift from welfare-based provision of public services to the quasi-market with private delivery and philanthropic investment is an issue that needs a thorough examination through evidence and rigorous argument. This book seeks to do this by not only charting events and providing detailed examination about what is happening but also by locating these developments within a contemporary political and social analytical framework.
Topics covered include:
* the legal and political process of establishing Academies
* the working and impact of Academies using a range of data and perspectives
* the debates and issues regarding this major reform, with comparative perspectives.
The State and Education Policy shows how the Academies Programme in England is an important site for examining the growth of neoliberal ideas and practices in the framing and delivery of public services such as education.

Chapter 1

Academies and the Law

David Wolfe

Introduction

I am a lawyer who has specialized in public law, including education law, since 1992. I work as a barrister, advising, writing, training and acting in court on behalf of parents/children, schools, local education authorities and non- governmental organizations around issues such as admissions, exclusions, special educational needs (SEN) and school reorganizations. For several years, I was also a part- time chair of the Special Educational Needs and Disability Tribunal. Over the last four years, a particular focus of my work has been academies. I have appeared in most if not all of the major cases in the High Court and Court of Appeal dealing directly with academies and have noted, with great interest, the legal shifts that have taken place as the government’s political approach to the academies has altered over that period.

This chapter draws on my personal experiences¹ to describe the essential legal nature of academies to summarize some² of the legal rights and obligations of parents/pupils at academies³ and the law surrounding the establishment of academies. This chapter focuses on the Academies Programme as devised and developed by the New Labour governments (1997–2010) but much of the analysis is applicable to ongoing debates.

Ask the department?

The New Labour government said things like:

• ‘Section 88A of the SSFA 1998 prohibits the interviewing of parents and/or children as a method for deciding whether a child is to be offered a place at a school’ (School Admissions Code 2009).⁴

• ‘Academies must have regard to the SEN code of practice and statutory guidance on inclusion’ (Academy Principals’ Handbook, 2009).⁵

• ‘The admission authority for the school or Academy may refuse to admit a child who has been excluded twice, or in the case of a community or voluntary controlled school, the governing body may appeal against the decision of the local authority as the admission authority to admit the child (see the School Admission Appeals Code for information on these appeals)’ (School Admissions Code, 2009).⁶

That is consistent with what Ministers said to parliament when promoting those parts of the Education Act 2002 that provide for academies. For example, Stephen Timms (Schools Minister), told the Education Bill Committee on 15 January 2002:⁷

I can give the hon. Gentleman the particular assurance that he seeks. Academies – unlike City Technology Colleges, by the way – will comply in full with the requirements on special educational needs and admissions and exclusions legislation as it applies to maintained schools.

Unfortunately, the departmental statements above are not true, or certainly not universally true.⁸ Stephen Timms’ assurance has only partly been fulflled.

This chapter shows how such discrepancies arise.

Schools and the law

The starting point is the legal expressions ‘maintained school’ and ‘independent school’.

By section 20(7) of the School Standards and Framework Act 1998, ‘maintained school’ means ‘a community, foundation or voluntary school or a community or foundation special school’. Most publicly funded schools are maintained schools – i.e. maintained by the local authority.⁹ But academies are not maintained schools. By section 463 of the Education Act 1996,

‘independent school’ means any school at which full- time education is provided for –

(a)fve or more pupils of compulsory school age, or

(b)at least one pupil of that age for whom a statement is maintained under section 324, or who is looked after by a local authority . . . and which is not a school maintained by a local education authority or a special school not so maintained.

The governance arrangements for, and the rights of parents and pupils at, maintained schools are set down in Acts of parliament, regulations (also known as statutory instruments), codes of practice, statutory guidance and non- statutory guidance.

Thus, for example, Part 4 of the Education Act 1996 specifes key rules in relation to children with SEN in ‘maintained schools’; regulations made under that part add detail; and maintained schools are required, by section 312 of the 1996 Act, to have regard to the SEN Code of Practice. A recent (1 September 2009) addition to that framework was that special educational needs co- ordinators (SENCOs) must now have minimum qualifcations.¹⁰ A similar approach is taken to admissions,¹¹ exclusions,¹² the curriculum¹³ and so on at maintained schools. Compliance with those obligations can ultimately be enforced (including by a child or parent) by court action known as judicial review, by which the ‘claimant’ can get the court to force a maintained school to act lawfully.¹⁴ Legal aid may well be available for such a challenge.

But none of that applies to independent schools.

That is not to say independent schools are uncontrolled, but the legal control (and thus the rights of parents/pupils) is very different and much more limited. Thus, by Part 10 of the Education Act 2002, independent schools must comply with ‘independent school standards’ as prescribed in the Education (Independent School Standards) (England) Regulations 2003.¹⁵ They require independent schools, for example, to have regard to departmental health and safety guidance, have a frst- aid policy, properly supervise pupils, keep a record of sanctions imposed on pupils and maintain an admission and attendance register; but the requirements are expressed in the most general terms.

As mentioned below, there are also some legal requirements (say around discrimination and equality) that apply to all schools, including independent schools. But the other rights and responsibilities at an independent school are defned by a contract, generally between the person placing the pupil and the independent school. In a conventional independent school, the contract will be between the child’s parents and the school. Sometimes, such as where a child with a statement of SEN is placed at an independent school, it will be a public body, such as a local authority. But either way, the primary focus in establishing, for example, the process to be followed before a child is permanently excluded, is the particular contract between the school and the parent. And the provisions of the contract are enforced, not through judicial review but through the ordinary process of civil litigation that deals with breaches of contracts of whatever kind.¹⁶

Another term is also sometimes bandied around – ‘state school’. But that term has no legal signifcance.

What about academies?

So how do academies ft in? Academies are, in law, independent schools, not maintained schools, let alone one of the types of maintained school, as above. So the statutory provisions that apply to maintained schools (or particular types of maintained school) only apply to academies if they also specifcally refer to academies, as a few do.¹⁷

Maintained schools are operated by governing bodies which are statutory corporations. An academy is operated by a private company (which the department calls the ‘academy trust’) created by what the department calls a ‘sponsor’. That happens through a contract with the Secretary of State that, because it takes effect under section 482 of the Education Act 1996, is then known as an academy. Section 482 says this:

1. The Secretary of State may enter into an agreement with any person under which –

(a) that person undertakes to establish and maintain, and to carry on or provide for the carrying on of an independent school in England with the characteristics mentioned in subsection (2) and such other characteristics as are specifed in the agreement, and

(b) the Secretary of State agrees to make payments to that person in consideration of those undertakings . . .

2. Before entering into an agreement under this section, the Secretary of State must consult the following about the establishment of the school –

(a) the local education authority in whose area the school is to be situated; and

(b) if the Secretary of State thinks that a signifcant proportion of the pupils at the school is likely to be resident within the area of another local education authority, that authority.

3. An agreement under this section shall make any payments by the Secretary of State dependent on the fulflment of –

(a) conditions and requirements imposed for the purpose of securing that no charge is made in respect of admission to (or attendance at) the school or, subject to such exceptions as may be specifed in the agreement, in respect of education provided at the school, and

(b) such other conditions and requirements in relation to the school as are specifed in the agreement.

4. A school to which an agreement under this section relates shall be known as an Academy.

Critically, as considered further below, the Secretary of State has struck different deals with different academy sponsors.

As the department’s Academy Principals’ Handbook puts it:¹⁸

Most, but not all, Education Law applying to maintained schools does not apply (through explicit mention in the statute or regulations) to Academies. A number of legislative provisions are, however, enforced in respect of Academies through equivalent provisions in the Funding Agreement.

(n.p.)

In other words, academy Funding Agreements can (and generally do) require each academy to comply with the law as it applies to mainstream schools, either by specifcally referring to education legislation, or by setting out equivalent requirements. But the Handbook’s statement simply begs questions including, frst, which legislative provisions? And, second, what is the nature of the obligations under a Funding Agreement and who can enforce those obligations?

The Handbook also says:

It is important to stress, however, t...